773 F.Supp. 792
IOTA XI CHAPTER OF SIGMA CHI FRATERNITY, John Howlin, President, and John Singsank,
Past President, Plaintiffs,
Civ. A. No. 91-785-A.
Victor M. Glasberg, Victor M. Glasberg & Assoc.,
Paul Joseph Forch, Sr. Asst. Atty. Gen.,
HILTON, District Judge.
matter comes before the court on plaintiffs' motion for summary judgment and
defendants' motion to dismiss. In this action, the plaintiffs seek declaratory
and injunctive relief for
action arises under the First and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. § 1983. This court has
jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1343 and may give declaratory relief pursuant to 28 U.S.C. § 2201. The plaintiffs in this action are the Iota
Xi Chapter of Sigma Chi Fraternity which is at George Mason University (GMU)
and two members of the fraternity, the president and the immediate past president
of the chapter. Defendant GMU is a public university maintained and funded in
significant part by the
For the past two years, a week long event
known as Derby Days has been held at GMU by the Iota Xi chapter of Sigma Chi.
Derby Days is a major social event for the chapter and is held to raise money
for charity. One event during
the week of
"Dress A Sig"
event took place on
Plaintiffs and defendants agree that the First Amendment claims are ripe for summary judgment. As there are no material facts in dispute on the First Amendment claims, it is proper to resolve this issue on summary judgment.
One of the fundamental rights secured by
the First Amendment is that of free, uncensored expression, even on matters
some may think are trivial, vulgar or profane. Berger v. Battaglia, 779 F.2d 992, 1000 (4th Cir.1985),
cert. denied, 476
Plaintiffs assert that the discipline imposed by GMU unconstitutionally punishes expression protected by the First Amendment. Defendants, however, argue that the behavior of the plaintiffs at the "Dress A Sig" contest was not expressive and therefore, not protected speech. Defendants contend that only political and social speech are protected by the First Amendment and that this conduct is neither. However, the Supreme Court has held that activity such as nude dancing and performance in black face are protected expression under the First Amendment. Barnes v. Glen Theatre, Inc., ___ U.S. ___, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Berger v. Battaglia, 779 F.2d 992 (4th Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986).
Barnes v. Glen Theatre, Inc., ___ U.S. ___, 111 S.Ct. 2456, 115 L.Ed.2d 504
In this case, however, GMU did not seek to regulate any conduct whatsoever. It was not the conduct of renting the auditorium, holding Derby Days, raising money for charity, providing entertainment, or performing a skit which prompted GMU to discipline the members of Sigma Chi. To the contrary, it was the expressive message conveyed by the skit which was perceived as offensive by several student groups which prompted GMU to discipline the fraternity. This skit contained more than a kernel of expression; therefore, the activity demands First Amendment protection.
Even if the activity is protected, the defendants contend that any infringement on the First Amendment rights of the Sigma Chi fraternity is permissible because compelling educational interests are at stake. In particular, the defendants assert that Sigma Chi's behavior undermines the education of minority and women students, the university's mission to promote learning through a culturally diverse student body, the university's mission to eliminate racist and sexist behavior on campus and the university's mission to accomplish maximal desegregation of its student body. Although the university has these interests, there has been no substantial or material disruption of GMU's educational mission. See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Crosby v. Holsinger, 852 F.2d 801 (4th Cir.1988). The student activity at issue in this action is consistent with GMU's educational mission in conveying ideas and promoting the free flow and expression of those ideas.
Furthermore, defendants have only alleged general, unspecified claims of harm to the students who were exposed to the "Dress A Sig" contest. "The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole — such as the principle that discrimination based on race is odious and destructive — will go unquestioned in the market-place of ideas." Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 2546, 105 L.Ed.2d 342 (1989). As noted by the Fourth Circuit in Berger v. Battaglia a more appropriate response to the activities of the fraternity, and one consistent with the First Amendment "would have been instead to say to those offended by ... [the] speech that their right to protest that speech by all peaceable means would be as stringently safeguarded ... as would ... [the] right to engage in it." Berger, 779 F.2d at 1001.
also raise the issue of whether or not
the cafeteria auditorium used by the plaintiffs is a public forum. However,
that is not a compelling issue since GMU permits the cafeteria auditorium to be
used upon written application by student groups to hold charity events and to
perform skits. In fact, GMU approved the plaintiffs' application to use the
cafeteria auditorium on
Although appropriate time, place and manner
restrictions on free expression are permissible, a state university may not
suppress expression because it finds that expression offensive. See Piarowski v. Illinois Community
College, 759 F.2d 625, 630
(7th Cir.) (racially and sexually offensive art work
not subject to outright suppression by state school), cert. denied, 474
Plaintiffs' expression occurred at a charity social event in the cafeteria of the student union before an audience composed of students and non-students who paid money to witness a performance. Although the university disagreed with the message propounded by the fraternity's activity, GMU may not discipline the students by infringing on their First Amendment rights based on the perceived offensive content of the activity. "[O]ne of the most persistent and insidious threats to first amendment rights has been that posed by the `heckler's veto,' imposed by the successful importuning of government to curtail `offensive' speech at peril of suffering disruptions of public order." Berger, 779 F.2d at 1001 (citations omitted). In this instance, GMU sought to discipline the students based precisely on the "heckler's veto". That is not permissible.
court need not reach the defendants' motion to dismiss as this summary judgment
motion is dispositive. Summary judgment is granted in
favor of the plaintiffs and the defendants are enjoined from imposing any
discipline on the plaintiffs as a result of the activity of